By Benjamin Wittes
Sunday, December 30, 2012 at 11:03 AM
Over at Opinio Juris, Kevin Jon Heller has a piece commenting on Glenn Greenwald’s and my recent discussion of the difference between the accidental killing of children with drones and the intentional killing of children at Newtown. It opens:
There’s been an interesting debate in the blogosphere recently about why people find the murder of 20 young children at Newtown so much more horrible than the routine killing of children in Yemen and Pakistan by U.S. drones. Glenn Greenwald and Falguni Sheth, a philosophy professor at Hampshire College, find the selective outrage indefensible. Ben Wittes and the Telegraph‘s Brendan O’Neill, by contrast, insist that the two situations are not comparable, because Lanza intended to kill the children at Newtown while – as Wittes puts it—“[c]ivilian deaths in drone strikes are not intentional.”
Wittes and O’Neill obviously have a point. No one can seriously believe that the U.S. wants to kill children with drones; the most that can be said is that the U.S. is willing to accept the possibility, if not inevitability, of such collateral damage, because it believes drones strikes are militarily necessary in the conflict with al-Qaeda. That is a distinction with a difference: it is indeed morally worse to kill someone because you want them to die than to kill someone without desiring their death but knowing it will result from your (ostensibly well-intentioned) actions.
That said, I think Wittes and O’Neill’s “intentional”/”unintentional” distinction misleads more than it explains. To see why, it is useful to turn to comparative criminal law. Although neither Wittes nor O’Neill focus on the legal aspects of Newtown and the drone program, both implicitly adopt a definition of “intent” that parallels American criminal law — as the subjective desire to bring about a particular consequence. That definition is what justifies their insistence that Newtown involves intentional killing while the drone program involves unintentional killing.
But the American understanding of intent is not the only one. Many civil-law systems have a much broader understanding of “intent,” one that considers even non-volitional action to be intentional. German criminal law, for example, considers acting in the knowledge that a consequence is virtually certain to occur to be intentional, even if the actor does not subjectively desire to bring about that consequence.